Judgment:
Sham Sunder, J.
1. The appeal, is directed, against the judgment and decree, dated 12.10.2006, rendered by the Court of Civil Judge (Junior Division), Karnal, vide which, it closed the evidence of the plaintiffs (now appellants), and dismissed the suit, under Order 17, Rule 3 of the Code of Civil Procedure, and the judgment and decree, dated 29.05.2007, rendered by the Court of Additional District Judge, Karnal, vide which, it dismissed the appeal.
2. The plaintiffs (now appellants), filed a suit for permanent injunction, claiming themselves to be the owner, in possession of the cattle verandah marked ABCD, measuring 49' 27', total area 147 sq.yards, comprising Rectangle No. 177, Killa No. 27(0-5), situated in village Jundla, Tehsil and District Karnal, as fully detailed in para No. 1 of the plaint, after having purchased the same from Khajan Chand son of Tulsi Ram, defendant No. 1, vide sale deed dated 30.5.1990. It was stated that, at the time of the purchase, the suit property was vacant. The plaintiffs constructed a cattle shed thereon, and immediately after its purchase, also installed hand pump and fodder machine. The defendants tried to take forcible possession of the property, in dispute. They were many a time, asked not to do so, but to no avail. Ultimately, the suit, referred to above, was filed.
3. Defendant No. 2, put in appearance, and filed written statement, wherein, he took up various objections and contested the suit. It was pleaded that the plaintiffs had not come to the Court, with clean hands, and, as such, were not entitled to the injunction, prayed for. It was stated that in fact, the father of defendant No. 2 Sh. Lal Chand son of Hovna Ram, was the owner in possession of the said Gair Mumkin bora, measuring 5 marlas, as per the revenue record. The father of defendant No. 2, had expired, on 3.3.1990, and after his death, all his legal heirs, became owners of the gair mumkin bora, measuring 5 marlas. Later on, on checking the revenue record, the defendants came to know, that their father was also owner of the bora, which was allotted to him in consolidation proceedings by deducting a part of the agricultural land. It was further stated that the plaintiffs had no concern with the property, in dispute.
4. On the pleadings of the parties, the following issues were struck:
i) Whether the plaintiffs are entitled to a decree for permanent injunction as prayed for? OPP
ii) Whether the plaintiffs have not come to the Court with clean hands and have suppressed the true and material facts? OPD
iii) Whether the suit of the plaintiffs is not maintainable? OPD
iv) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD
v) Whether the plaintiffs have no cause of action to file the present suit? OPD
vi) Whether the suit deserves to be dismissed? OPD
ii) Relief.
5. When no evidence, was produced, by the plaintiffs, after affording a number of opportunities, their evidence was closed, vide order dated 12.10.2006, and the suit was dismissed, under Order 17, Rule 3 of the Code of Civil Procedure, by the trial Court.
6. Feeling aggrieved, an appeal, was preferred by the appellants, which was dismissed, by the Court of Additional District Judge, Karnal, vide judgment dated 29.05.2007..
7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellants.
8. The following substantial questions of law, arise, in this appeal, for the consideration of this Court:
i) Whether the Courts below, illegally rejected the medical certificate dated 11.10.2006, placed on record, on behalf of Bhag Chand, one of the appellants, regarding his illness, and erred, in closing the evidence?
ii). Whether, on account of the closure of evidence, manifest injustice has been caused to the appellants?
9. The Counsel for the appellants, submitted that, no doubt, some opportunities, were granted to the plaintiffs, to lead evidence, yet they could not produce the same. It was further submitted by him that, on the date, when the evidence was closed, one of the plaintiffs Bhag Chand, was having severe back-ache, and, as such, was unable to appear, in the Court, for his evidence. It was further submitted that, on that very day, Khan Chand, the other plaintiff, was away to Delhi, and he also could not appear. It was further submitted that there was no intentional or willful default, on the part of the appellants, in producing the evidence. It was further submitted that a reasonable opportunity, be granted to the appellants, to lead evidence, by setting aside -the judgments and decrees of the Courts below.
10. On the other hand, the Counsel for respondent No. 2, submitted that, there was deliberate, and willful default, on the part of the plaintiffs, in producing the evidence, though they were granted a number of opportunities, and, as such, the trial Court, was right, in closing their evidence, and dismissing the suit, under Order 17, Rule 3 of the Code of Civil Procedure. He further submitted that the first Appellate Court, was also right, in dismissing the appeal. It was further submitted by him, that the judgments and decrees of the Courts below, did not suffer, from any illegality, and were liable to be upheld. v
11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is a fit case, in which, the appeal, deserves to be accepted, for the reasons to be recorded, hereinafter. No doubt, the perusal of the judgments of the Courts below, reveal that opportunities, were granted to the plaintiffs to lead their evidence, yet they could not lead the same. However, it is evident from the judgments of the Courts below, that, on the day, when the evidence, was closed, the absence of the plaintiffs, could not be said to be wholly intentional and willful. It is true that the party must be diligent and vigilant, in producing the evidence, within the reasonable time. However, it is settled principle of law, that procedure is the hand-maid of justice, meant to subserve the ends thereof, than to thwart the same. The procedural wrangles, cannot be allowed to stay, in the grant of substantial justice. When substantial justice, and the procedural wrangles are pitted, against each other, then the former will prevail over the latter. It is also settled principle of law, that every lis, should be decided, on merits, and short-cut methods, should not be adopted, for the purpose of putting an end to the litigation, by the CoWs. The prineiple of law, laid down, in State of Punjab v. Shamlal Murari : A.I.R. 1976 S.C. 1177, was to the effect that, the procedure is, in the ultimate, the hand maid of justice, and not its mistress, and is meant to advance its cause, and not to obstruct the same. A procedural rule, therefore, has to be liberally construed, and care must be taken, that so strict an interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provision may result in the stifling of the material evidence of a party, even if, for adequate reasons, which may be beyond his control. We must always remember that procedural law is not to be a tyrant, but a servant, not an abstraction, but an aid to justice. Procedural prescriptions are the hand maid, and not mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected without injury to a just disposal of the case, the Court should not enthrone a regulatory requirement into a dominant desideratum. After all, the Courts are to do justice, not to wreck this end product on technicalities. In my considered opinion, the Courts below, were wrong, in discarding the medical certificate of Bhag Chand, showing that, he was ill, and, thus, unable to appear, in the Court, on the date, when the evidence was closed. The Courts below were also wrong in coming to the conclusion that the absence of Khan Chand was not justifiable. On account of this reason, manifest injustice, stood occasioned, to the appellants, as their lis was decided, not on merits, but by default. Therefore, in my opinion, in the larger interest of justice, it is a fit case, in which, reasonable opportunity, is required to be granted, to the appellants, to lead their evidence, though the opposite party, can be compensated, by way of costs. Both the substantial questions of law are answered in favour of the appellants.
12. For the reasons recorded above, the appeal is accepted with no order as to costs. The judgments and decrees of the Courts below, are set aside. The trial Court shall restore the suit at its original number. The plaintiffs (now appellants), shall be granted two effective opportunities, by the trial Court, which shall commence, after 21.08.2009. It shall be the responsibility of the plaintiffs (now appellants), to produce the entire evidence on two dates, and, in case, they failed to do so, then the trial Court, shall be, at liberty to close the same. After the evidence is closed by the plaintiffs, reasonable opportunity shall be given to the defendants (now respondents), to lead their evidence, and thereafter, the case, shall be decided, afresh, in accordance with the provisions of law. However, the appellants, are burdened with costs of Rs. 2,000/-, for causing somewhat delay, in the disposal of the case. The payment of costs of Rs. 2,000/-, shall be a condition precedent, to the leading of evidence. The parties, are directed to appear, in the trial Court, on 21.08.2009, at 10.00 A.M.